State v Moulongo [2015] FJMC 41; Criminal Case 195.2012 (27 March 2015)

IN THE MAGISTRATES COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 195/2012

STATE

V

SETAREKI MOULONGO

Counsel : Ms.Low for the State
Ms.Devi (L.A.C) for the accused

Date of Sentence : 27th March 2015

SENTENCE

1. SETAREKI MOULONGO, you were found guilty by this Court after a trial for 3 counts of Rape contrary to Section 149 & 150 of the Penal Code Cap 17 and 4th count of Attempted Rape contrary to Section 151 of the Penal Code Cap 17.
   
2. It was revealed during the trial that between the 01st day of January 2004 and the 31st day of December 2004 at Taveuni in the Northern Division, you raped XY (name suppressed). At that time she was 08 years old . Again in 2007 on two different occasions you raped her when she was only 11 years old . Also in the same year you attempted to rape KN ( name suppressed) who was 08 years old.
   
3. Both parties have filed their respective submissions in this case and I have considered them also for my sentence.
   
4. The maximum penalty for the offence of Rape under the Penal Code is life imprisonment.
   
5. In Mohammed Kasim v The State Appeal 14 of 1993 it was stated :
   

“We consider that any rape case without aggravating or mitigating feature the starting point for sentencing an adult should be a term of imprisonment of 7 years. It must be recognized by the courts that the crime of rape has become altogether too frequent and the sentences imposed by the courts for that crime must reflect an understandable public outrage”

6. The tariff for the rape of children is from 10- 16 years imprisonment. In Raj v State [2014] FJCA 18; AAU0038.2010 (5.3.2014) the Fiji Court of Appeal held that Rape of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the accepted range of sentences is between 10 and 16 years and this was confirmed by the Supreme Court.
   
7. In State v Mario Tauvoli [2011] FJHC 216, HAC 027.2011 his Lordship Justice Madigan held that:"Rape of children is a very serious offence in deed and it seems to be very prevalent in Fiji at the time. The legislation had dictated harsh penalties and the Courts are imposing those penalties in order to reflect society's abhorrence for such crimes. Our nation's children must be protected and they must be allowed to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound."
   
8. For attempted Rape the prescribed penalty is 10 years imprisonment and tariff is from 12 months to 05 years imprisonment. (Aunima v The State)[2001]FJHC 105.
   
9. As the accused was a juvenile at the time of the offences section 30 of the Juvenile Act is also relevant and therefore the maximum prison sentence can be imposed on him is 02 years imprisonment.
   
10. Aggravating factors in this case are the age of the victims, vulnerability of them and the breach of trust as you were an uncle of both victims and they were under your care when some of these offences were committed .
    
11. Mitigating factors are young age, first offender and seeks forgiveness from this Court.
    
12. For each count I select 12 months as my starting point ( this is below the tariff for rape but considering the accused was a juvenile this is justified) and add 10 months for aggravating factors to reach 22 months imprisonment. For the mitigating factors I deduct 06 months and as the final calculation I deduct the period in remand ( 01 month) to reach 15 months imprisonment for each count. Considering the totality principle these are concurrent.
    
13. Final issue to be decided in this whether I should suspend this sentence. Both parties have submitted number of case laws regarding that issue. From these I would agree with the observation made by his Lordship Justice Temo in State V AT [2011] FJHC 344 where the Lordship said "In my view, order has to be established in the juvenile world. Young persons who are approaching adulthood (ie. 18 years old) should not be allowed to exploit the vulnerable in the juvenile world. In this case, a 17 years 10 months 3 days old juvenile takes advantage of a 4 year old juvenile. In my view it is the duty of the court to step in and protect the most vulnerable in the juvenile world. This is especially so, when those who are approaching adulthood (ie. 18 years old), take advantage of the young, by raping them. To commit rape against the young, in my view, is the characteristic of a "depraved character", and a custodial sentence within the ambit of the Juvenile Act is called for"
    
14. Further I would like to add that a deterrence sentence is warranted when there is an abuse the trust and the victims are children to prevent these from occurring in future. Accordingly you SETAREKI MOULONGO are sentenced to 15 months imprisonment for these offences.
    
15. For the safety of the victims (XY and KN) I also issue a permanent DVRO with standard non molestation conditions in favor of them.
    
16. 28 days to appeal
    

H.S.P.Somaratne
Resident Magistrate